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Effects of decree of legal separation

(a) On personal relations, FC 63

Art. 63. The decree of legal separation shall have the following effects:
(1) The spouses shall be entitled to live separately from each other, but the
marriage bonds shall not be severed;
(2) The absolute community or the conjugal partnership shall be dissolved
and liquidated but the offending spouse shall have no right to any share of
the net profits earned by the absolute community or the conjugal
partnership, which shall be forfeited in accordance with the provisions of
Article 43(2);
(3) The custody of the minor children shall be awarded to the innocent
spouse, subject to the provisions of Article 213 of this Code; and
(4) The offending spouse shall be disqualified from inheriting from the
innocent spouse by intestate succession. Moreover, provisions in favor of the
offending spouse made in the will of the innocent spouse shall be revoked by
operation of law. (106a)

(b) On the custody of children

FC 63(3); FC 213
Art. 63. The decree of legal separation shall have the following effects:
(3) The custody of the minor children shall be awarded to the innocent
spouse, subject to the provisions of Article 213 of this Code

Art. 213. In case of separation of the parents, parental authority shall be

exercised by the parent designated by the Court. The Court shall take into
account all relevant considerations, especially the choice of the child over
seven years of age, unless the parent chosen is unfit.
NCC 106(3)
Art. 106. The decree of legal separation shall have the following effects:
(3) The custody of the minor children shall be awarded to the innocent
spouse, unless otherwise directed by the court in the interest of said minors,
for whom said court may appoint a guardian;

Matute v. Macadaeg, 99 Phil 340, May 30, 1956

PETITIONER: ROSARIO MATUTE Cheated with his brother-in-law

RESPONDENT CFI Judge Macadaeg; Private Respondent Armando Medel
husband of Rosario

FACTS: Armando Medel filed an action for legal separation against Rosario
Matute, upon the ground of adultery committed with his brother and her
brother-in-law, Ernesto Medel. The decision of the court, on November 6,
1952, found Rosario guilty of the charge against her, decreed said legal
separation, and awarded to Armando the custody of their four (4) minor
children. During the summer vacation of the children, they joined their father
in Cebu. With his permission, Rosario brought the children to Manila in April,
1955, to attend the funeral of her father. Armando alleges that he consented
thereto on condition that she would return the children to him within two (2)
weeks. However, Rosario did not do so. Instead, she filed a motion praying
for the awarding the custody of her children and Armando be obligated to
support the children in their studies and give them a monthly allowance. It
was alleged that three of the children did not want to live with their father
because he is already living with a woman other than their mother.

Armando opposed this motion and countered with a petition to declare and
punish Rosario for contempt of court, because of her failure and alleged
refusal to restore the custody of their children to him.

On June 29, 1955, CFI Manila, presided over by Respondent Judge Macadaeg,
issued an order absolving Rosario from the charge of contempt of court as
she secured Armando's consent before bringing the children to Manila. On
the other hand, the Court denied her motion for the custody of the children
and ordering her to deliver them to Armando within twenty-four hours from

Rosario instituted this action of certiorari and prohibition on Armando and

respondent judge upon the ground that said order of June 29, 1955, had
been issued with grave abuse of discretion, and that there is no other plain,
adequate and speedy remedy in the ordinary course of law.

ISSUE: whether said custody should be retained by respondent Medel, as

adjudged in the decision of November 6, 1952, or should be given to

HELD: Medel should retain Custody of children

RATIO: By virtue of said decision of November 6, 1952, respondent had the

custody of said minors. Petitioner merely obtained his permission to bring
them to Manila, for the purpose of attending the funeral of their maternal
grandfather, which took place in April, 1955. Thus, petitioner obtained and
has the physical possession of the minors in a precarious manner. She holds
it in the name, on behalf and by authority of respondent Medel, whose agent
she, in effect, is. He may, therefore, demand their return at any time, and
she is bound to comply immediately with such demand. She cannot even
question his authority to make it, although she is free to seek a review of the
order or decision awarding the custody of the minors to him, and to ask that
they be placed under her charge.

Again, it is conceded that children over ten (10) years of age, whose parents
are divorced or living separately, may choose which parent they prefer to
live with, unless the parent chosen is unt to take charge of their care by
reason of "moral depravity, habitual drunkenness, incapacity or poverty"
(Rule 100, section 6, Rules of Court). Without deciding whether the adultery
committed by herein petitioner with her own brother-in-law involves moral
depravity, it is clear to our mind that the afrmative assumption implicit in
the order complained of cannot be characterized as an "abuse of discretion",
much less a "grave" one.

Lastly, said order further declares: the facts remains that defendant-movant
is without means of livelihood and, according to her own admission, she lives
on the charity of her brothers. She has no home of her own to offer to her
children, but only she would shelter them under the roof of her brothers."